Grant v. Skinner , 1854 N.Y. App. Div. LEXIS 175 ( 1854 )

By the Court, Harris, J.

The defendant went to Maine and purchased the property in question. He paid for it with his own money, and took a bill of purchase in his own name. Upon the face of the transaction, therefore, the defendant was the owner. If, notwithstanding these facts, it was claimed that the defendant made the parchase as the agent of the Gulicks, the question should have been submitted to the jury. There was evidence enough to require such submission, but not enough to warrant the court in assuming that the Gulicks, and not the defendant, were the original purchasers.

The parties, in making the instrument of the 29th of March, seem to have assumed that the defendant was the owner. The Gulicks agreed to pay the defendant a specified sum for the property, and the defendant agreed to accept the- sum mentioned. Such language is only appropriate to a sale. It is not adapted to the case of a mortgage. Again, the sale was upon credit. The Gulicks were to pay for it within five months, and, in the meantime, the defendant was to lend the property to them. Such terms evidently presuppose the ownership to be in the defendant. On the other hand, the latter clause in the instrument is suited to the case of a mortgage, It is declared that if the Gulicks should fail to pay, the defendant should be at liberty to take the property away, to enable him to realize the amount specified, with interest. This language, however, is not inconsistent with the idea of a conditional sale, especially when considered in connection with the other facts in the case.

The defendant lived with one of the Gulicks, He was in the habit of assisting them, both by lending them money and by his personal services. The machines, with their fixtures, were purchased by him at their instance and for their use and benefit. It is quite apparent that he would never have made such a purchase under any other circumstances. Having no use for such property himself, it was quite natural for him, in making an arrangement with the Gulicks, to reserve the right, in case they should fail to pay for the property according to their agreement, to resume the possession to enable him, by making some other disposition of it, to re-imburse himself for the money he had expended in the purchase.

It is worthy of notice, too, that the Gulicks do not appear ever to have claimed any ownership of the property. Egbert Gulick says there was no particular agreement on the subject before the machines were purchased, except that the defendant was to go after the machines and advance the money to pay for them, and when he returned, the instrument of the 29th of March was made. Suppose, under these circumstances, the question of ownership had been raised between the defendant and the Gulicks directly, The purchase having been made by the defendant himself—the price, and all the expenses connected with the purchase, having been paid by him—the bill of sale having been taken in his name, and there being no agreement that in making the purchase he should act as the agent of the Gulicks, when, it might be asked, was the title transferred from the defendant to the Gulicks ? When did the Gulicks acquire such an ownership as authorized them to mortgage the property ? If the answer be, at the time of the purchase by the defendant, then this was a question to be decided by the jury upon the evidence. If at the time of the execution of the instrument of the 29th of March, we have seen that the better, as well as the more equitable construction of this transaction, requires that it should be regarded as a conditional sale, rather than an absolute sale with a reconveyance by way of mortgage. Until the performance of the condition, it was expressly agreed that the Gulicks should hold the property as bailees, and not as owners. There was nothing in this transaction to pass the title to the Gulicks. (See Strong v. Taylor, 2 Hill, 326; Herring v. Willard, 2 Sand. 418.) I think, therefore, it was error to instruct the jury that the instrument of the 29th of March was a mortgage, and that, it not having been filed as a mortgage, the plaintiffs were entitled to a verdict for the value of the property. For this error a new trial should be awarded, with costs to abide the event.

[Albany General Term, December 4, 1854.

Wright, Harris and Watson, Justices.]